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TMI Blog2024 (9) TMI 112X X X X Extracts X X X X X X X X Extracts X X X X ..... nterest along with refund under Section 35FF of the Excise Act, is not dependent on whether the same has been claimed by the Assessee or not. The same is axiomatic. In the present case, once the Ld. Adjudicating Authority committed a legal error in not granting interest on refund of pre-deposit while passing the Order-in-Original and appeal against the Order-in-Original is filed, then the Ld. Appellate Authority is bound to correct the error. The finding given by the Ld. Commissioner (Appeals) in the impugned order that question of interest does not arise at this stage, is not legally sustainable. In the case of M/S CADILA PHARMACEUTICALS LTD VERSUS COMMISSIONER OF SERVICE TAX-SERVICE TAX - AHMEDABAD [ 2018 (1) TMI 424 - CESTAT AHMEDABAD] , ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... such appeal. The appeal of the Appellant was allowed with consequential benefits vide Order-in-Appeal No.NOI-EXCUS-002-APP-141-19-20 dated 08.05.2019 by the Commissioner (Appeals). In terms of direction in the Order-in-Appeal dated 08.05.2019, the Appellant filed an application for refund of the amount pre-deposited. The Assistant Commissioner, Central GST, Division -1- Gautam Buddh Nagar, Uttar Pradesh vide Order-in-Original No.435-R/AC/D-I/GBN/19-20 dated 06.02.2020 allowed the refund of the amount pre-deposited, however he has not granted statutory interest on the amount so refunded in terms of Section 35FF of the Central Excise Act, 1944. Being aggrieved with the part of the Order-in-Original dated 06.02.2020 by which the statutory inte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt of above submission, is placed on the ratio of the decision of the Tribunal in the case of L.G. Electronics India Pvt. Ltd. v. Commissioner of C. Ex., Noida, 2019 (369) E.L.T. 1395 (Tri. - All.), where it was held that interest needs to be paid when the same is payable by way of operation of law. The Appellant further relies on the decision in the matter of Continental Engines Pvt. Ltd. Vs. Commissioner (Appeals), C. Ex. CGST, Jaipur-I 2022 (382) E.L.T. 522 (Tri. - Del.) where it was held that Appellant was simultaneously entitled to interest which was to be calculated @ 12% from the date of payment of said amount and not from the date of expiry of three months from the date of said order, no concept of any time-limit was mentioned in Se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uent upon specific order for consequential relief from the Appellate Authority, the concerned Authority is under a statutory obligation to pay interest from the date of payment of pre-deposit amount till the refund of such amount. Reason being, Section 35FF uses the expression there shall be paid to the Appellant interest , thereby indicating that payment of interest is not discretionary but mandatory under the provision. Therefore, payment of interest is statutory and axiomatic. In the present case, Department is not disputing that Appellant has made the pre-deposit of more than Rs.10 crore under Section 35F of the Excise Act on 05.09.2017, which was post 06.08.2014 when Section 35FF was amended. The same is clearly evident from the operat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ovides for an interest on refund of an amount deposited in furtherance of Sec. 36F consequent on the order of the Appellate Authority from the date of payment of the amount till the date of refund of such amount. The said Section does not differentiate between the deposits made in cash or by debit in Cenvat account. There being no differentiation as regards the deposit in the Section, the First Appellate Authority reliance on the CESTAT Circular No15/CESTAT/Gen/2013 dt 8.8.2014 is misplaced and not at all applicable in the case in hand. In my view, the wordings of the Section 35 FF are very clear and unambiguous and the facts of this case also being not disputed, denial of interest to appellant under Section 35FF for only for the reason tha ..... X X X X Extracts X X X X X X X X Extracts X X X X
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